Court’s Confederate-flag ruling casts a dark shadow over student journalists’ rights

Let’s say the local school board has an “open mike hour” where members of the public can offer comments. The first speaker has nothing but praise for the board members. So does the second. But the third speaker is a known critic of board policy.

Just as he’s approaching the podium, the school board chairman unplugs the microphone and declares, “We’re not interested in hearing your bellyaching, buddy. Take your opinions somewhere else.”

Textbook First Amendment violation, right?

Not anymore, if a federal appeals court’s July 5 ruling is allowed to stand.

Some principles of First Amendment law are on uncertain footing, but there are two that  — at least until last Friday — seemed unshakeable:

First, it’s never allowable for a government agency to pick-and-choose among speakers based on their viewpoints.

Second, once the government designates a forum for the public to use for speech, the government can’t censor what speakers say, or plan to say, without a highly compelling justification.

The Fourth Circuit U.S. Court of Appeals has just upended both of those assumptions, in a decision that portends trouble for all speakers — including student journalists — who plan to use government property to convey a message.

The ruling, Sons of Confederate Veterans v. City of Lexington, involves a city council’s 2011 decision to revoke its policy of letting private organizations affix flags to city lampposts.

The policy change was provoked by negative reaction to a January 2011 parade at which the Sons of Confederate Veterans (“SCV”) hung Confederate flags along the route.

Lawyers for the SCV argued that, once the City of Lexington opened its flagpoles for the display of banners, a “public forum” was created — and that forum could not be closed to keep a disfavored speaker from expressing an unwanted opinion.

In June 2012, a federal district court threw out the SCV’s legal challenge — and on Friday, a three-judge panel of the Fourth Circuit unanimously agreed.

What makes the ruling so significant — and of special interest to those working in student media — is the judges’ refusal to second-guess the city’s motives for revoking the flagpole-access ordinance. The ruling, written by Judge Albert Diaz, defers entirely to the city’s discretion in managing its own property: “A government is entitled to close a designated public forum to all speech.”

This is a potentially huge development in First Amendment law.

The Supreme Court has recognized that government agencies can “designate” a piece of government property as a “public forum” for the expression of ideas — by soliciting ads for the side of buses, by creating an open-mike period at a school board meeting, or by funding an extracurricular newspaper that students produce outside of class time. Once government property is designated as a “forum,” then the highest known level of First Amendment protection applies to that property, and any regulation of the content of speech will be presumed unconstitutional absent the most compelling possible justification.

Except that now, in the view of three judges in the Fourth Circuit, the forum can be closed at any time for any reason — apparently without exception. Even a signed confession by the City of Lexington that the city declared its flagpoles off-limits specifically to punish the Sons of Confederate Veterans would be of no relevance.

Simple logic shows where this is heading.

If the flagpoles are a designated public forum, then the City of Lexington cannot refuse to accept an application from a particular speaker just because of the speaker’s unpopular message. If the city rejected SCV’s application to use a designated public forum, the rejection would be presumed unconstitutional and would face a heavy uphill burden of justification.

But if the city simply takes the initial step of saying, “We are revoking the public forum,” then — in the view of the Fourth Circuit — the city can accomplish the same objective for the same reason, without any degree of First Amendment scrutiny at all.

In the case of the SCV, the Fourth Circuit has now made it possible for the City of Lexington to designate its lampposts as public forums, un-designate them for the brief period surrounding each year’s “Lee-Jackson Day” that the SCV seeks to commemorate, and then re-designate them once that period has passed. All without the possibility of judicial oversight.

Now, envision the mischief that the Fourth Circuit has just invited in the newsroom. The Supreme Court recognized in its 1988 Hazelwood ruling that schools could confer heightened protection on student publications by designating them as public forums. Once a publication is a public forum, then the school may not censor it without proof of a compelling justification on the order of imminent danger to school safety.

But if “public forum” status has no durability — if it may be removed at any time and for any reason, even an overtly punitive or retaliatory reason — then the designation of property as a public forum becomes meaningless and its heightened First Amendment protections become illusory. Only the clumsiest government censor will ever be slowed by the existence of a “designated” forum, since it will take just the momentary formality of first un-designating the forum and then imposing the censorship.

The Lexington ruling essentially reads “designated public forums” out of the law of the Fourth Circuit, which sets binding legal precedent for the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina.

It’s possible to appeal a three-judge panel’s ruling to the entire (“en banc“) roster of 15 active judges, especially if the decision conflicts with an earlier circuit ruling.

The Lexington case is a prime candidate for further review. One panel of a circuit cannot overrule a prior panel’s ruling. Only the en banc circuit, or the Supreme Court, can do that. It’s certainly difficult to reconcile Friday’s ruling with what the same Fourth Circuit said a generation earlier in a case involving the censorship of a student newspaper at North Carolina Central University.

In that case, Joyner v. Whiting, the Fourth Circuit decided that a college president’s order freezing funding for a student newspaper because of a disagreement over news coverage decisions was unconstitutional. In a key passage, Judge John D. Butzner wrote:

It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.

In other words, once a state agency decides to establish a forum for expression, the forum cannot be closed to punish or prevent particular views from being heard.

Friday’s City of Lexington ruling makes only a half-hearted attempt to explain a way around the Joyner case. The judges remark in passing that Joyner was not a “public forum” case, but that is not an especially persuasive distinction. The court decided Joyner before the Supreme Court began using the phrase “public forum” in so many words, but in everything but name, Joyner was a case about the use of a designated public forum (in that instance, a college newspaper).

It would be a sounder basis for distinction to say that the Joyner case took place in the special context of an educational institution, a setting in which the Supreme Court has repeatedly emphasized the need for heightened regard for free expression. That may be how the courts eventually reconcile the mess that the Fourth Circuit has just made — one rule for student speech at educational institutions, another for everyone else — but neither speakers nor regulators should be forced to play guessing games because of judicial sloppiness.

Until the last word on the Lexington case is heard, it will be foolhardy for any student publication (or any speaker) to rely on the phrase “designated public forum” as providing any greater protection than a Kleenex in a thunderstorm. Those seeking to insulate speech against censorship would be better-advised to remove “designated public forum” from their vocabularies and to instead enumerate with specificity the boundaries of the government’s censorship authority and what happens when a regulator oversteps that authority.